Twitter’s Subpoena Policy: A Profile in Courage — Really?

For the second time in as many months, a local law-enforcement agency has served Twitter with a subpoena that instructs the micro-blog network to hand over information on a suspected rabble-rouser of the Occupy persuasion and warns not to tell anyone – not even the tweet-happy revolutionary being investigated – about the subpoena’s existence.

And once again, despite the ominous-sounding language directing Twitter to keep schtum, within days of receipt of the subpoena, a copy has gone up on Scribd. Hardly surprising, as Twitter’s law-enforcement guidelines make clear that Twitter prefers to notify users when their account information is being sought by prosecutors. Notifying tweeters they’re being investigated allows them to try to have the subpoenas quashed — before Twitter has to comply.

Laudable, perhaps. But is Twitter’s subpoena-notification policy as courageous as some media have made it out to be?

For example: The latest Twitter user-cum-investigation target is Malcolm Harris (b/k/a, @destructuremal), an Occupy protester arrested in October during the Brooklyn Bridge mass-arrest imbroglio. “Twitter so far has been really great, actually,” Mr. Harris told Mashable. “They broke the gag order at the bottom of the subpoena to send it to me.”

The Mashable scribe goes on to gush about how Twitter also passed along the Occupy-related subpoena it received in December from a prosecutor in Boston, even though that subpoena likewise contained a directive that Twitter keep the subpoena’s existence to itself.

But folks, just because a big-city assistant district attorney inserts a nondisclosure warning at the bottom of a subpoena, that doesn’t mean there’s a “gag order” in effect. The prosecutors who sent these subpoenas have done nothing more than make strongly worded requests: In the context of legal proceedings, a true gag order can only be imposed by a judge (with the historical exception being the mandatory-nondisclosure clauses in National Security Letters from the FBI… and recently, even the FBI’s ability to impose a gag order has been the subject of a serious constitutionality attack.)

What’s more, if laws on the books made it a crime for the recipient of a subpoena to publicize its existence, you can be darned sure that the right beneath their nondisclosure requests the prosecutors would have provided the relevant citations – in BIG, bold letters. (I’m guessing that Twitter’s crack in-house legal team did their due diligence on this front, and knew that they weren’t risking or defying anything when they forwarded their subpoenas.)

The problem prosecutors face is that while they don’t want subpoena recipients to alert investigation targets that the heat is on, the law doesn’t provide them with much leverage. Though Florida has a “criminal disclosure of subpoena” statute, that law is only applicable where there is proof that the person making the subpoena’s existence public did so with the intent to “obstruct, impede or prevent” an investigation or prosecution. The federal “obstruction of criminal investigations” law is even less helpful to prosecutors: it contains anti-subpoena-disclosure provisions that apply only to higher-ups at financial institutions and insurance companies.

What’s surprising is not that Twitter has kept its promise to tip off users that they’re being investigated, but that law enforcement continues to demand nondisclosure in the absence of any law supporting their position. And Twitter is far from the first subpoena recipient to call a prosecutor’s bluff on this score.

Back in 2008, a blog devoted to New York politics received a subpoena from the Bronx County District Attorney’s Office seeking info on anonymously written posts that criticized some of the borough’s most prominent political figures. The subpoena, of course, contained a nondisclosure demand. The site’s founders balked and promptly hooked up with a lawyer; the Bronx DA ultimately withdrew the subpoena. (Here‘s The New York Times‘ article on the story – note the nebulous use of the word “gag” in the fifth paragraph.)

In 2009, a left-leaning news site received a subpoena from a federal prosecutor in Indianapolis who wanted information on the site’s visitors and subscribers. Despite the subpoena’s nondisclosure warning, the site’s server administrator contacted the Electronic Frontier Foundation, and one of the group’s staff lawyers sent the prosecutor a letter that contained a polite explanation of why the nondisclosure instruction was utter hogwash. The subpoena was soon withdrawn. (Here‘s the CBSNews.com post on that story. Curious and mistaken use of “gag order” can be found in the second graf.)

No one can deny that Twitter deserves kudos for its pro-privacy stance. Its law-enforcement guidelines state that it will notify users of requests for account information “unless…prohibited from doing so by…court order,” but Twitter has, in fact, gone further than that. When the feds went after Wikileaks-associated Twitter accounts, they presented Twitter with a judge-signed order that contained a valid gagging provision. Twitter successfully challenged the gag order and told the targeted tweeters what the government was up to, resulting in plaudits from across the blogosphere.

Twitter’s response to the court order in the Wikileaks case was noteworthy because it showed Twitter was willing to fight to protect its vision of online privacy. But don’t go thinking that Twitter is doing anything special in ignoring a prosecutor’s tactic that was exposed as toothless years ago.

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